Jon Campisi Aug. 1, 2012, 6:37am

A three-judge panel of the state Superior Court has affirmed a Philadelphia Common

Pleas Court ruling discontinuing a toxic tort case brought against dental products companies by a husband and wife.

Michael Kostryckyj and Chrystyna Rakoczy had sued Pentron Laboratory Technologies LLC, Hubert C. Jasinski Dental Laboratory Inc., and Hackman Dental Labs Inc. over allegations that their products caused Michael Kostryckyj to sustain injuries.

Specifically, the lawsuit claimed that Kostryckyj, who had worked as a dental technician for several different dental laboratories for nearly three decades, was diagnosed in 1998 with a chronic inflammatory disease of the lungs called sarcoidosis, which has unknown origins.

Ten years later, the plaintiff was diagnosed with chronic beryllium disease.

The couple filed their complaint against the defendants in February 2009, initially containing a count of intentional conduct with a substantial certainty of causing injury; the complaint was amended two months later revising the initial count against the defendants as a claim for fraudulent misrepresentation.

In February 2011, the record shows, the defendants filed a motion for summary judgment. The motion was granted by a Philadelphia judge in May of last year.

On June 8, 2011, the plaintiffs filed their appeal with the Superior Court, the state’s top tier appellate court below the Supreme Court.

The couple argued that the trial court erred since material facts were in dispute.

In a July 27 ruling, the Superior Court panel affirmed the trial court’s decision, writing that the plaintiffs failed to set forth a prima facie case of fraudulent misrepresentation necessary to satisfy an exception under Martin v. Lancaster Battery Co. to the exclusivity of the Pennsylvania Workers Compensation Act.

The plaintiffs asserted that the Martin exception applies to their case because they have produced sufficient evidence to satisfy the two required elements of said exception.

The plaintiffs had argued that the defendants knew of the dangers associated with beryllium and not only failed to warn the husband but also continued to expose the man to beryllium-based products.

The couple also claimed that the defendants failed to implement a testing system to determine whether employees had contracted a beryllium-based disease even though the Occupational Safety and Health Administration issued a bulletin to the defendants recommending such a testing system.

The couple asserted the trial court incorrectly enlarged the required elements necessary to satisfy the Martin exception by introducing an element of knowledge, such that they had to demonstrate that the defendants knew of the husband’s pre-existing condition.

The plaintiffs had maintained that Martin does not expressly discuss a knowledge requirement.

“Husband and Wife conclude material questions of fact exist concerning Appellee’s [defendants’] actions, and the trial court erred in granting summary judgment in favor of Appellee,” the Superior Court ruling states. “We disagree.”

The panel wrote that regardless of whether the trial court found the plaintiffs failed to demonstrate the defendants knew of the husband’s pre-existing condition, “Husband and Wife remained unable to satisfy the Martin exception because they did not make out a prima facie case of fraudulent misrepresentation.

“Viewing the record in the light most favorable to Husband and Wife, we agree they failed to present any evidence that Appellee intended to mislead Husband or deliberately misrepresented the dangers of beryllium to induce Husband to continue working for Appellee,” the ruling continues. “The facts of this case do not present a situation where Appellee actively deceived Husband in the manner contemplated by the Martin Court. Consequently, Appellee was entitled to judgment as a matter of law.”

The opinion was written by Superior Court Judges Susan Peikes Gantman, Jacqueline O. Shogan and David N. Wecht.

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